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Derrick D. MOORE, Sr. v. LOUISIANA PAROLE BOARD
Derrick D. Moore, Sr. appeals the district court's judgment dismissing, with prejudice, his petition for judicial review for failure to state a claim for which relief may be granted. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
In a revocation decision by the Louisiana Department of Public Safety and Corrections, Board of Pardons and Parole (“Parole Board”) dated April 20, 2021, Derrick D. Moore, Sr. (“Moore”) was found guilty of violating Rule 4 1 by engaging in criminal conduct as evidenced by his arrest 2 on October 23, 2019 and by his conviction 3 on January 13, 2021. Moore was also found guilty of violating Rule 10 4 by being in arrears in the amount of $1,134.00 for his supervision fees. Ultimately, the Parole Board voted to revoke Moore's parole pursuant to his violation of Rule 4.
On August 12, 2021, Moore filed a petition for judicial review of his parole revocation in the Nineteenth Judicial District Court (“district court”). Moore contended that he entered into guilty pleas for two misdemeanor charges based on information given to him by his parole agent to resolve the matter and that his involvement with the incident that lead to his arrest was defensive in nature.
On May 5, 2022, the Louisiana Commission on Parole (“Commission”) moved to dismiss Moore's petition for judicial review. The Commission contended that the claim raised was preempted and that Moore failed to state a claim upon which relief could be granted. Thereafter, on August 29, 2022, the district court commissioner found that Moore failed to state a claim for which relief could be granted and recommended that the district court grant the Commission's motion to dismiss, with prejudice, at Moore's costs.
Moore subsequently filed a traversal to the commissioner's findings. Moore contended that the commissioner's report indicated that he was represented at the revocation hearing, but he was not. Moore further argued that the Parole Board failed to ask if he wanted counsel, failed to inform him of his right to counsel, and failed to provide counsel. Moore urged the district court to reverse the Parole Board's decision and remand for a new hearing with counsel representation at the Commission's cost.
After a de novo review of the pleadings and the traversal, the district court adopted the recommendation of the district court commissioner and dismissed Moore's petition for judicial review, with prejudice, at Moore's costs for failure to state a claim for which relief may be granted. The judgment was signed by the district court on September 12, 2022. Moore filed a notice and order of appeal on October 12, 2022, which was signed by the district court on the same day.
ASSIGNMENT OF ERROR
Moore contends that he was denied his constitutional rights as a parolee to be represented by counsel at his revocation hearing.
Louisiana Revised Statutes 15:574.11 is a statutory grant of appellate jurisdiction to the Nineteenth Judicial District Court to review decisions of the Parole Board where a denial of a revocation hearing under La. R.S. 15:574.9 is alleged or the procedural due process protections specifically afforded for such a hearing were violated. Breaux v. Louisiana Parole Board, 2019-1411 (La. App. 1st Cir. 8/3/20), 2020 WL 4435438, at *2, Thus, an appeal is allowed only where the parolee has alleged in his petition for judicial review that his right to a revocation hearing has been denied or that the procedural due process protections specifically afforded by La. R.S. 15:574.9 in connection with such a hearing were violated. Id. (Emphasis added.)
Louisiana Revised Statutes 15:574.11 provides, in pertinent part:
A. Parole is an administrative device for the rehabilitation of prisoners under supervised freedom from actual restraint, and the granting, conditions, or revocation of parole rest in the discretion of the committee on parole. No prisoner or parolee shall have a right of appeal from a decision of the committee regarding release or deferment of release on parole, the imposition or modification of authorized conditions of parole, the termination or restoration of parole supervision or discharge from parole before the end of the parole period, or the revocation or reconsideration of revocation of parole, except for the denial of a revocation hearing under R.S. 15:574.9.
C. The district court shall have appellate jurisdiction over pleadings alleging a violation of R.S. 15:574.9. The review shall be conducted by the court without a jury and shall be confined to the revocation record. Within thirty days after service of the petition, or within further time allowed by the court, the committee on parole shall transmit to the reviewing court the original or a certified copy of the entire revocation record of the proceeding under review. The review shall be limited to the issues presented in the petition for review. The discovery provisions under the Code of Civil Procedure applicable to ordinary suits shall not apply in a suit for judicial review under this Subsection. The court may affirm the revocation decision of the committee on parole or reverse and remand the case for further revocation proceedings. An aggrieved party may appeal a final judgment of the district court to the appropriate court of appeal.
In his assignment of error, Moore contends that he was denied his constitutional rights as a parolee to be represented by counsel at his revocation hearing. However, he did not raise this issue in his petition for judicial review. In his petition for judicial review, Moore only contended that the Commission should have exercised its discretion and not revoked his parole because his charges were misdemeanors and his decision to enter a plea was based upon the discussions and agreement between Moore's attorney and initial parole agent. Based upon the clear and unambiguous language of La. R.S. 15:574.11(C), the district court's review was limited to the issues presented by Moore in his petition for judicial review.5
Similarly, Moore is limited on appeal to the grounds he articulated in his petition, and a new basis for a claim cannot be raised for the first time on appeal. State v. West, 2018-0868 (La. App. 1st Cir. 5/31/11), 277 So. 3d 1213, 1217. Since Moore's petition for judicial review did not allege that his right to a revocation hearing was denied or that the procedural due process protections specifically afforded by La. R.S. 15:574.9 were violated, we find that the district court was correct in its finding that Moore failed to state a claim for which relief may be granted. This assignment of error is without merit.
For these reasons, the September 12, 2022 judgment by the Nineteenth Judicial District Court granting the Louisiana Department of Public Safety and Corrections, Board of Pardons and Parole's motion to dismiss Derrick D. Moore, Sr.’s petition for judicial review, with prejudice, at Derrick D. Moore, Sr.’s cost is affirmed. Costs of this appeal are assessed against Derrick D. Moore, Sr.6
1. Rule 4 is a condition of Moore's parole and provides, “I will not engage in criminal activity, nor will I associate with people who are known to be involved in criminal activity. I will avoid bars and casinos, I will refrain from the illegal use of drugs or alcohol.”
2. Moore was arrested for aggravated second degree battery, possession of schedule II controlled dangerous substance, possession of a firearm by a convicted felon, illegal carry of a firearm with illegal drugs, and possession of drug paraphernalia.
3. Moore was convicted of simple battery and possession of drug paraphernalia.
4. Rule 10 is a condition of Moore's parole and provides, “Pay supervision fees to the Department of Public Safety and Corrections in an amount not to exceed sixty-three dollars based upon his ability to pay as determined by the committee on parole. Payments are due on the first day of each month.”
5. The interpretation of any statutory provision starts with the language of the statute itself. When the provision is clear and unambiguous and its application does not lead to absurd consequences, its language must be given effect, and its provisions must be construed so as to give effect to the purpose indicated by a fair interpretation of the language used. State v. Folse, 2018-0154 (La. App. 1st Cir. 9/21/18), 258 So. 3d 53, 61, writ denied, 2018-1739 (La. 4/22/19), 268 So. 3d 305.
6. Although Moore filed his petition for judicial review in forma pauperis, because he was unsuccessful in obtaining the relief sought, costs may be assessed against him. Taplette v. Louisiana Department of Public Safety & Corrections, 2020-0818 (La. App. 1st Cir. 2/22/21), 321 So. 3d 425, 430, n. 9, reh'g denied (Mar. 29, 2021).
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Docket No: NO. 2022 CA 1278
Decided: June 02, 2023
Court: Court of Appeal of Louisiana, First Circuit.
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